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An illiberal mandate.

In our January 13 editorial, we criticized a ruling from the Department of Health and Human Services that would require all employers to include "contraception and sterilization coverage in their health-insurance plans, including those provided to employees of religious institutions." Only religious organizations that primarily employ and serve co-religionists, and whose mission is to inculcate its values, according to the "interim final rule," could be exempt from the mandate. The U.S. Conference of Catholic Bishops, we wrote,

argues that compelling the church to pay for plans that cover services the church has long held to be immoral violates the religious-freedom guarantee of the First Amendment. Catholic hospitals, universities, and social-service agencies see their mission as caring for people of all faiths or none, and they employ many non-Catholics. Given this understanding of mission, inevitably there will be a degree of entanglement between any large religious institution and the modern state. That should not be an excuse, however, for imposing secular values on more traditional religious communities.

So, we concluded, President Obama ought to expand the religious exemption to include organizations like universities and hospitals. Apparently he was not persuaded. (Bear with me, this is going to be a long post.)

Friday, HHS announced that the rule would stand, but that religious institutions would have until August 2013 to figure out how to comply. In the meantime, secretary of HHS Kathleen Sebelius explained, organizations that do not currently offer contraception coverage will have to provide notice to employees that will include information about where they can obtain contraceptive services. Noting that the rule will have no effect on existing conscience-protection laws covering health-care providers -- meaning, for example, that a Catholic hospital won't be made to perform sterilizations -- Sebelius promised "to work closely with religious groups during this transitional period to discuss their concerns."

Obviously, the decision provides little comfort to religious groups that objected to the interim rule. Within hours of the announcement, the USCCB fired off a press release vowing "to fight [the] HHS edict." Archbishop Timothy Dolan of New York put out a brief video protesting the decision. In effect, the president is saying we have a year to figure out how to violate our consciences, Dolan said. And Sr. Carol Keehan, president of the Catholic Health Association -- and a key ally in the Obama administration's effort to pass the Affordable Care Act -- also expressed disappointment with the ruling. While noting that it was "important to have clarified by the president and the secretary of HHS that this decision will not undermine the current conscience protections in law and so very necessary for our ministries," she called the final ruling "a missed opportunity to be clear on appropriate conscience protection."

Keehan is right. The Obama administration blew a chance to correct far too narrow an exemption. Doing so would have avoided the specter of government forcing religious groups to act against their moral convictions. What's more, expanding the exemption would have maintained the status quo. That is, if HHS had expended the exemption, women who work for Catholic institutions that do not cover contraception would not lose anything they already had.But is Dolan correct? Is HHS just kicking the can down the road to make it impossible for the Supreme Court to rule on this before Election Day? Or could something be worked out that might satisfy the demands of Catholic moral teaching? One idea that's been proposed is the so-called Hawaii compromise.

Hawaii requires all employers in the state to include contraception services in their health-insurance coverage. As Wake Forest University's Melissa Rogers explains:

Under Hawaii law, religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed the enrollees pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.

Under Hawaii law, a religious organization that objects to providing contraception coverage to its employees can invoke a refusal clause that would allow the institution to exclude such services from employee health plans. Religious groups that invoke the refusal clause must -- as required by the HHS ruling -- provide written notice to employees informing them that contraception is not included in their health plans, and they must tell employees where such services can be obtained. A refusal clause only pertains to contraception services intended to avoid pregnancy. An employer must provide coverage for contraception prescribed to treat, for example, the symptoms of menopause. According to the law, an employee is entitled to buy contraception coverage from her insurer at a cost that is no higher than the enrollee's pro-rata share of the price the employer would have paid had it not exercised the religious exemption. So religious institutions do not have to subsidize insurance coverage including contraceptive services, and employees who want such coverage can purchase a separate rider with their own money.

Would that satisfy Catholic moral teaching? It seems so. According to the Catholic moral tradition, cooperation with "evil" (in this case, the use of contraception) is permitted in some circumstances. The USCCB objects to forcing Catholic institutions to fund contraception coverage for employees because it believes doing so would involve them in unacceptably proximate cooperation with evil. Catholic institution pays insurance premium. Insurance company pays for contraception. Employee uses contraception. (We'll get to whether that's a sound analysis in a moment.) But if HHS and religious employers can come to an agreement like the one reached in Hawaii, religious employers would not be directly contributing to the use of contraceptive services. It's true that, as a group purchaser, a religious institution's buying power would be used to set the price an employee would have to pay for a contraception rider, but that cooperation is too remote to be illicit because the good of providing health coverage to employees justifies the act.

But what if such a compromise cannot be reached? What if religious institutions outside the narrow exemption are made to cover contraceptive services that an employee may or may not use? In the USCCB's response to Friday's decision, Archbishop Dolan is quoted saying, "To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable. It is as much an attack on access to health care as on religious freedom." Is he implying that if the religious exemption is not broadened, Catholic institutions will stop providing health care to employees? He wouldn't be the first. Late last year, Bishop Robert Lynch of St. Petersburg threatened to stop providing health coverage to diocesan employees if HHS refused to expand the exemption. Instead, he would offer employees a lump sum they could use to purchase coverage on the open market. How many bishops would follow Lynch's lead? And is that the only course of action permitted by Catholic moral teaching? I don't think so.

(Here I'm cribbing from comments I left on another thread.) In the United States, benefits are part of an employees compensation package. Thats why Bishop Lynch said he would offer diocesan workers more money on top of their base salary, which they could use to buy insurance on the open market. Those plans will likely be more expensive and less comprehensive than those offered by the diocese, and they might include contraception and abortion coverage. What happens when a diocesan employee buys coverage that includes abortion and contraception with money provided by the diocese? What happens when an employee can't get good coverage because he lacks the diocese's purchasing power, and ends up with a pile of medical bills he can't pay? Or forgoes treatment because it could bankrupt him?

To what extent is the institutional church cooperating with evil when its employees purchase contraceptives with their salaries? What is the difference between a diocese giving employees money they can spend freely and giving an insurance company money for coverage that may or may not include procedures and drugs the institutional church deems gravely immoral, or necessary to a gravely evil act? What does it mean morally for a diocese to pay, say, Aetna for a plan excluding the pill and abortions, when other Aetna plans include such services? Does the bishop believe Aetna is not using diocesan funds to cover other plans that do include contraception? By Lynch's logic, are bishops already cooperating with evil by paying insurance companies at all? If so, how remotely? More remotely than they would be if they paid for coverage that could lead to a Catholic employee violating church teaching against contraception? How might a bishop justify such a thing? Perhaps by weighing it against the good of health coverage for his employees -- coverage individuals could not get for themselves on the open market.

Paying for health-insurance that includes contraception coverage does not amount to formal material cooperation with evil because an employee may or may not take advantage of the benefit -- and the act of using artificial contraception is something an employee could engage in with or without health insurance. Rather, when a Catholic institution pays for health insurance that includes birth control, it is remotely cooperating with evil. Remote material cooperation is permissible, according to Catholic tradition, when there are proportionate reasons. Providing health care for someone who could not get comparable coverage as an individual on the open market (and at this point an individual could not) is sufficient reason to freely and remotely cooperate with evil.

So much for the moral-theological analysis (and, moral theologians, I'm happy to be corrected). What about the politics of Obama's decision?

My initial response to the decision was, "This is politically daft and philosophically illiberal." Why risk the Catholic vote Obama worked so hard to win in 2008? I still think the HHS rule is profoundly wrong-headed, but I'm not so sure it's politically foolish, especially not when Obama has been so strongly criticized from the left. Michael Sean Winters has announced that Obama lost his vote over this. Is he typical of most Catholic voters? Obama knows most Catholics disagree with church teaching against contraception, and that they want contraception coverage. He also knows Catholics don't respond well when they think bishops are telling them how to vote. By shoring up his base on this issue -- and reducing unintended pregnancies is something he ran on -- Obama is risking the portion of the Catholic vote that is sensitive into the argument that even if you think contraceptive services should be provided as a matter of basic health care, it's wrong to force religious institutions to violate their moral precepts by paying to cover them. How many voters are keyed in to that question? How many are paying attention to their bishops' statements on election-year issues? Not many, it seems. And it's not as though the bishops have made much noise about the fact that twenty-eight states already require religious institutions to cover contraception, and eight of them lack a religious exemption. So perhaps Obama figured that he couldn't win with the USCCB -- not when its former president feels free to call his "the most secularist administration in history" -- and decided that expanding contraception coverage was worth the criticism.

We'll know in eight months.



Commenting Guidelines

Jim: How about the cancer patient who must not get pregnant while taking chemotherapy? There are a lot of situations like this. Think harder. Do you also believe that couples who practice so-called natural family planning are violating the will of God? By the way, whether you accept Catholic teaching against so-called artificial contraception is irrelevant to your consideration of the religious-freedom question raised by the HHS ruling.A thing is only anti-X if it targets only X. Just because Catholic institutions are adversely affected does not mean that they have been discriminated against because they are Catholic. Jewish religious leaders have objected to this regulation too. Do you also think it's anti-Semitic?You ascribe purely political motives to the HHS ruling. I'm sure politics played a role in the decision-making process, but, as I noted in my post, Obama ran on reducing unintended pregnancies, a policy position he holds in part because half of abortions end unintended pregnancies.

Cupcake You point is well taken and I tend to agree that a single-payer basic plan is better than the ACA monstrosity we have now. However when talking about national insurance, everyone should really, really understand that it needs to be a very bare-bones affair; it should only cover the minimum. A national healthcare plan should be so designed that it is minimal, that most people would want more deluxe policies and accordingly, workers and self-employed folks would either press their employers to include a rider to the national plan or they would buy into HMOs (Kaiser Permanente in CA; other states have their own HMOs) or buy into other types of health insurance plans.That way everyone would have the floor; the same minimum policy. Poor folks of course would benefit the most because they have no health insurance now. They would make due either with the minimal national plan or with some combination of the national policy and their local states Medicaid plan. Middle class folks would benefit from a national policy because the national plan would help control the cost of middle class folks healthcare plans because it something upon which they would build the rest of their healthcare plans. Richer folks also would pay for and have the minimum national plan and would buy their own policies as well; they will be Ok in any case.Everyone would benefit because as it is now, folks who do not have health insurance show up at emergency rooms, the meter starts running - we all know how fast that gets pricey - and those with insurance and the taxpayer in general pays for it all.This sort of minimal national health care plan would cover our basic social responsibility (our Christian duty if you will) of tending to the poor, and to the common good. Also, since anything over and above the basic national plan would either be in the form of Medicaid (which is controlled by the local state) or by private insurance, it would also fill the bill as far as subsidiarity/local control is concerned.Ah but now, we did not do any of this did we? Now some are beginning to realize the devil is in the details, that ACA as it currently stands, in all its 2000 page glory is full of 'devils', is not palatable to most reasonable Americans, and as a practical matter is most probably not workable. As such, expect real efforts by Republicans to scrap it. And then we can start all over again.

Mr. Gallicho,Of course, Obama is committed to ending "unintended pregnanies." There's an organization that has ending such pregnancies as its raison d'etre, and Obama agrees with that organization 100%. That organization, of course, is Planned Parenthood. Obama has never wavered in his fealty to Planned Parenthood, and he just marked the anniversary of Roe v. Wade by issuing a statement praising Roe v. Wade and vowing to defend that evil decision. At least there's none of this "I'm personally opposed to abortion" hypocrisy from Obama. As he said during the campaign about his daughters, "if they make a mistake, I don't want to see them punished with a baby." Babies as punishment: Margaret Sanger couldn't have said it better herself.

It seems to me that "health insurance" should cover those goods and services that physicians recognize as supported by scientific evidence as safe, effective, and, increasingly, that offer value appropriate to their cost. I can't see why religious institutions should attempt to deny coverage for indicated services because of their moral qualms. Money is fungible; once a salary or benefit is allocated to an employee it is his choice how he uses it.The church of Jehovah's Witnesses proscribes blood transfusions, citing Biblical verses. I wonder if that church feels compelled to offer its employees, of any faith tradition, only health insurance policies that deny coverage for infusion of blood or blood products. I do not know the answer, but perhaps some contributor to this discussion does. If they are permitted to make such an exclusion, then so should Catholic employers. If not, then neither should the Catholics.

Eric,I believe that almost all adults have moral views based upon their own intuitions, simple or complex. These can derive from many sources. An example is the one you stated above: "I think we are actually concerned about one anothers flourishing because we actually care about our fellow human beings and because there is a basic human solidarity that is not just based on an awareness that God made us and told us to be nice to each other..." That may satisfy you and serve as one of your fundamental premises. But it obviously doesn't satisfy others who are not so fortunate as to share your laudable sense of benevolence or humanitarianism, Nietzsche, for example, or Vladimir the Impaler, or numerous twentieth century tyrants. You may have worked out a completely rational defense of your intuition but I wouldn't be surprised if your formal and explicit defense of that intuition has only a few adherents and, moreover, is beyond the grasp of less educated folks, members of storefront churches, for just one example, or me, for another example. If Kantians cannot persuade utilitarians I would not be shocked if your views also met widespread incredulity if they could be understood at all. Disinterested observers might well conclude that your views rest upon firmly held intuitions rather than a rigorous and communicable philosophical system a la Rawls, Kant et al. It shouldn't be too hard to see that there's always a significant danger of morally disenfranchising the large segment of the population without graduate degrees when you adopt the public reason criteria.Just as people tolerated (at least in the pre-public reason era) and admired Jefferson's bold claim that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..." even though it was proclaimed without first providing a proof for the existence of a Creator,so we should grant contemporary religious citizens the same pedestal as Jefferson. When they make their claims, IMHO (but not in yours?), they occupy as legitimate a position as Peter Singer when he waxes eloquent upon his intuitions about infanticide. Again, why reject Niebuhr because of his intuitions if you don't reject Singer because of his intuitions? Why privilege your not easily communicated secular intuitions about benevolence when Genesis serves perfectly well and, if I may say so, in a superior way. And it's not a matter of Scripture for the masses serving the same function as Rawls for the educated elite. The latter might need a healthy dose of Biblical morality much more than the unwashed.Taylor has summarized the public reason position in this way (which seems to be in accord with your statements): "So religious reason either comes to the same conclusions as secular reason, but then it is superfluous; or it comes to contrary conclusions, and then it is dangerous and disruptive. This is why it needs to be sidelined." I won't repeat his arguments against this position here though I will say I don't think you have engaged them (either in the link above or in numerous other articles) with anything like the thoroughness they deserve. I've had my say -- In the meantime, as our Niebuhrian* president will no doubt urge tonight, May God bless America!!!*(proofs for the existence of God on request; proofs for the Niebuhrian quality of Obama's policies will require additional funding).

I agree with Dr. Mulrooney. Everybody's religious liberty counts. Public reason does not silence religious voices. In Catholic tradition, we actually have a theological advantage in this regard, thanks to my boy Thomas Aquinas. All truth participates in one Truth, ie., the Eternal Law, loosely defined as whatever God is thinking. What this means here is that good reason does not take us away from God. So what is conducive to human flourishing (socially, overall) is God's will. Some religious people of good will believe that eating meat violates the will of God, which they base on theological principles that make sense only to them. Yet the US Gov't subsidizes and regulates meat production in the name of the common good. Even if we carnivores all go to hell, we regulate society on the basis of arguments that make sense outside religious communities as well as inside them. MLK was especially deft at using both the rhetoric of American ideals and the rhetoric of Christian values to make his points. You didn't have to be Christian to agree with him, but Christians should have been first in line to help him out. If religious vegetarians can convince the rest of us that they are correct, without resorting to principles that do not make sense absent divine revelation, well, then we'll change things, I suspect.

Ken-One important consideration with respect to contraceptives is that covering them may have a net negative cost due to preventing pregnancies which are expensive. That is one of the reasons for the ban on copays for preventative measures.

Lisa, I agree that the divide between secular and religious reason is a false one, and Thomas helps us see that. The problem is that you have both secularists and religionists wanting to claim that belief in God (for example) is some kind of inscrutable foundational claim preventing any dialogue. This, of course, is something that the best thinkers on both sides, including Thomas and Kant, would reject.

Patrick, If disagreements are based on mutually exclusive personal intuitions, then rational argument is hopeless and all we are left with is violence and coercion. I wouldn't say that religious reasons are dangerous and need to be excluded if and when they do not agree with the status quo, I would just say they will be afforded the same attention and patience in making their case as any other view. If religious adherents demand more than that due to the enthusiasm they have for the veracity of their convictions, then they're no longer playing by the rules. So, religious reasons are not inherently dangerous, but if religious people take the view that you seem to support that their belief in God is a priviledged claim, which should be uncritically granted to them so that they can debate "Christianly" in the public sphere, then they themselves are already claiming that no dialogue with non-believers is possible. Where conversation stops, violence (or divorce) is usually not far behind. As for needing a graduate degree to understand all of this, you're the one who keeps dropping names from a first year philosophy syllabus and suggesting that I read and reference the relevant literature before responding to you.

One reason for keeping religious talk in the public square is that some people guide their lives entirely by their interpretation of the Bible or Koran. Some of their reasoning and interpretations are pretty bad, even crazy at times. It is good, therefore, for other believers with different interpretations to present their interpretations and to argue with the irrational believers. Like it or not, people vote their theology, and it needs to be argued.Also, many non-believers do respect religion as having good influence on believers, and some view religious sages, e.g., Jesus, as wise wise even though the non-believers do not believe the sages are gods.. So they are open to hearing what the religious sages say about one or another proposals. Consider, for instance, what Ghandi and MLK had to say about non-violent change. Their influence has been huge on non-believers.

Cupcake: "One important consideration with respect to contraceptives is that covering them may have a net negative cost due to preventing pregnancies which are expensive."This is the exact "secular reasoning" that the Church rightly opposes - it is this mechanistic and utilitarian view of human sexuality and human life that the Church stands against. While there are plenty of sophists and would be "professors" (dime a dozen on any campus) on here trying to explain away this totalitarian action by the state, the fact remains that it is not the Catholics forcing its views on society, but the state forcing its pseudo morality and reductive science on the us.

" - the fact remains that it is not the Catholics forcing its views on society, but the state forcing its pseudo morality and reductive science on the us."It is the church's trying to force society to allow it to impose its views on some employees who do not agree with that point of view - and take a tax writeoff for it.

After all the blather and high rhetoric, the fact remains that if the government sticks to its guns on this issue, the Catholic Church will need to get out of healthcare, social services, and education.

Barbara & Lisa: Thank you for the clear & reasoned contributions you have made on this thread.

This is a clever column but one thing I don't read here is an acknowledgement that the duty of the president is to protect and defend the constitution, even from politicians, and even from his own good intentions. The Hawaii "compromise" that Mr. Gallicho here recommends is one that will simply slow the slope, but we'll still end up descending down it. The Supreme Court recently (and correctly) ruled that this administration overreached on Hosanna-Tabor. They should eventually rule that this is an overreach, too, and an exceedingly disappointing one, especially for a president who taught constitutional law. Basic First Amendment stuff: the government, whether it likes a church's practice or not, has no business telling a private church-related institution that it must offer something that goes against its conscience. That's elementary and fundamental. Sometimes I think we are so over-educated that we forget very simple ideas like that one. We do so at our own peril. This very long column (too long) wondered about political motivations and paths to compromise, but missed this key truth: the president and his HHS had no business going where they have gone. And the proof of it is this: no one in the mainstream press is talking about it. The president did not bring it up in his SOTU address. They know it's bad penny, and they don't want to see it constantly coming up.

Doomed? Yes. Quixotic? Yes. Destined to fail? Probably. Fun? Definitely! Sign the petition to rescind the mandate.

Ugh; sometimes it seems the goal is to make abortionists of all of us.

Why pro-choicers feel it is within their "rights" to get so down and dirty, digging babies out of the womb and tossing them into the trash, I have no idea. Personally, I do wish they would leave me out of it; that they would do constantly try to not drag me down into such a grubby existence.

Wow - my typing is off today! should have been:"Personally, I do wish they would leave me out of it; that they would not constantly try to drag me down into such a grubby existence."